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April 26, 2022 Articles

States’ New Challenges to Peremptory Challenges

Arizona has eliminated peremptory challenges, while Washington and California have new rules to prevent implicit biases from influencing challenges.

By Jeffrey Gross and Woodworth Winmill

If states are our laboratories of democracy, experiments are underway in Arizona, Washington, and California that tinker with the rules governing the use of peremptory challenges in the hope of reducing bias. Depending on the results, more states may follow suit.

Most lawyers are familiar with the modest step the U.S. Supreme Court took in the 1980s to address explicit racial bias in Batson v. Kentucky, 476 U.S. 79 (1986), which barred the use of peremptory challenges to advance explicit racial biases in criminal trials. Batson instructs trial courts to conduct a three-step analysis when a party objects to the use of a peremptory challenge. First, the objecting lawyer must make an initial showing that the challenge was based on race. Second, if the court decides that the initial showing has been established, the burden shifts. The lawyer who had made the challenge has to provide a neutral and reasonable explanation for the challenge. Then, if the reason proffered is sufficient, the objecting party has to establish that the proffered reason is pretextual. The Supreme Court’s test was designed to protect not just defendants from racial bias but also to similarly protect jurors and the community at large.

The Batson test quickly became enshrined in state and federal courtrooms, constitutional law textbooks, and even legal television shows. The Supreme Court expanded Batson’s scope to civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) and then to gender-motived challenges in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994). In recent years, the Ninth Circuit and a California appeals court have held that Batson’s reasoning extends to LGBTQ jurors, but the Eighth and Eleventh Circuits each expressed doubt on extending Batson in that way. Smithkline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014); People v. Garcia, 77 Cal.App.4th 1269 (Cal. Ct. App. 2000); United States v. Baylock, 421 F.3d 758 (8th Cir. 2005); United States v. Ehrmann, 421 F.3d 774 (8th Cir. 2005); Sneed v. Fl. Dep’t of Cor., 496 F. App’x 20 (11th  Cir. 2012); see also Satinoff, Coming Out of the Venire: Sexual Orientation Discrimination and the Peremptory Challenge, 11 FIU L. Rev. 463 (2016).

Batson is only a limited check against bias in our jury system. And despite the expansion of Batson, the Supreme Court has not revisited Batson’s three-step test, nor has the Court attempted to refine it to address implicit bias, which has gained far more attention in recent years. Thus, for many lawyers and commentators, Batson offers an unsatisfactory answer to the concerns about how we can make juries fairer to the parties and more representative of the community at large. For one thing, it is not easy for courts to grant a Batson challenge when doing so means declaring one of the lawyers before the court a liar, a bigot, or both. In addition, courts have sometimes accepted explanations for striking jurors, such as their dress or demeanor, that may just be pretextual. As just one other shortcoming of Batson, the transcripts available to appeals courts are often insufficient to fairly assess some purportedly race-neutral reasons, such as a prospective juror’s body language or appearance.

In recent years, Arizona, Washington, and California each changed its laws on peremptory challenges. Arizona eliminated peremptory challenges altogether in 2021. Ariz. R. Crim. P. 18.4, 18.5; Ariz. R. Civ. P. 47. Arizona’s drastic change came three years after Washington’s highest court promulgated a rule on peremptory challenges. The rule states that a peremptory challenge is invalid if a reasonable observer would conclude based on the totality of the circumstances that race or ethnicity was a factor in the challenge, including via “implicit, institutional, and unconscious biases.” Wash. Gen. R. 37(a), (d). Additionally, Washington’s rule makes certain purportedly race-neutral reasons, such as a prospective juror’s prior contact with law enforcement officers, presumptively invalid. Wash. Gen. R. 37(h)(i). California’s new statute, which took effect in criminal trials in 2022, is similar to Washington’s, but it goes further. California’s statute addresses bias based on “gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.” C.C.P. § 231.7(a). California’s law has gone into effect for criminal cases and will go into effect for civil cases in 2026.

Though it remains to be seen how state court judges will apply these recent changes in California and Washington, there is reason to believe that at least some judges may interpret them narrowly. The text of the Washington and California requirements may pose practical obstacles that should temper any expectations for widespread and immediate change in the composition of juries. For example, while the new rules require courts to use a standard based on an “objective observer” who is aware of unconscious biases, it may be difficult to apply that standard. Courts have far more experience identifying discrimination based on claims of discriminatory intent (such as through the analysis of pretextual race-neutral explanations under Batson) or statistical evidence about the results of race-neutral policies.

It is also uncertain how different factors within the California statute or the Washington rule will affect lawyers’ questioning. For example, unusual questioning of a particular prospective juror is considered a possible red flag for unconscious bias. But a lawyer who needs to determine whether to use a preemptory strike might legitimately need to ask a particular potential juror more questions than other jurors. Additional questions might be helpful, for both the lawyer and the judge, to assess whether a strike stems from a “hunch” (implicit bias) or a well-founded concern about the juror’s partiality. Yet the lawyer’s decision to ask more questions could constitute evidence of the lawyer’s implicit bias. Similarly, the California rule includes “cursory questioning” of the juror as a factor that a court can weigh as evidence of bias, which further complicates a lawyer’s dilemma about how much or how little to question a prospective juror. C.C.P. § 231.7(d)(3)(c)(ii).

Overall, it is hard to predict the results of the new rules and the Arizona statute. There is also not enough data to reasonably predict the answers to many open questions. For example, will judges in Arizona be more open to challenges for cause to compensate for the new lack of peremptory challenges? Will lawyers in California and Washington find it worthwhile to litigate peremptory challenges? Will the new rules expedite or slow jury selection, and would a more deliberate or more efficient process be fairer? Will the new rules lead to greater faith in the judicial process by jurors and the public? Will parties retain experts to address questions of unconscious bias in jury selection?

In sum, there are many questions, and possible hypotheses, but no conclusions or even sufficient evidence to support conclusions. But the lessons to be learned from these changes are important because making peremptory challenges fairer is just one part of the much larger project to preserve faith in the jury system and the system of justice in criminal and civil matters.

Jeffrey Gross is a partner and Woodworth Winmill is an associate with Reid Collins & Tsai LLP in New York City, New York.

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